No. 10- IN THE OFFIC, E OF "[ HE CLERK

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1 No. 10- IN THE OFFIC, E OF "[ HE CLERK FRIENDS OF THE EVERGLADES, FLORIDA WILDLIFE FEDE RAT]:ON, and FISHERMEN AGAINST DESTRUCTION OF THE ENVIRONMENT, Petitioners, v. SOUTH FLORIDAWATER MANAGEMENT DISTRICT; CAROL WEHLE, Executive Director; UNITED STATES; UNITED STATES SUGAR CORPORATION, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI DAVID G. GUEST MONICA K. REIMER EARTH JUSTICE P.O. Box 1329 Tallahassee, FL (850) JOHN E. CHILDE 150 Indian Mound Trail D Tavernier, FL (305) Attorneys for Petitioners SEAN H. DONAHUE Counsel of Record DONAHUE & GOLDBERG, LLP 2000 L St., NW, Ste 808 Washington, DC (202) sean@donahuegoldberg.com DAVID. W. GOLDBERG DONAHUE & C~LDBERG, LLP 99 Hudson Street, 8th Floor New York, NY (212) (Additional Counsel for Petitioners Listed on Inside Cover)

2 DAVID REINER RE~NER & REINER, PA 9100 S. Dadeland Blvd. Suite 901 Miami, FL (305)

3 QUESTION PRESENTED The Clean Water Act prohibits "the discharge of any pollutant by any person" without a permit issued pursuant to specified provisions of the Act, 33 U.S.C. 1311(a), and defines "the discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source," id. 1362(12). The Act defines "navigable waters" to mean "the waters of the United States, including the territorial seas." Id. 1362(7). The question presented, discussed but left undecided in South Fla. Water Mgt. Dist. v. Miccosukee Tribe of Indians of Florida, 541 U.S. 95 (2005), is whether all waters of the United States may be treated as a "unitary" whole for purpbses of the Act s provisions requiring permits for point source discharges, so that transferring pollutants from one distinct water body to another - in this case, pumping contaminated water from drainage canals into an ecologically sensitive lake used for drinking water - does not constitute an "addition" of the pollutants to navigable waters and therefore does not require a permit.

4 ii PARTIES TO THE PROCEEDING Petitioners are Friends of the Everglades, Florida Wildlife Federation, and Fishermen Against Destruction of the Environment. All three petitioners were plaintiffs in the United States District Court for the Southern District of Florida and were appellees before the United States Court of Appeals for the Eleventh Circuit. Friends of the Everglades and Florida Wildlife Federation were also cross appellants in the Eleventh Circuit. The Miccosukee Tribe of Indians of Florida was an intervenor in support of plaintiffs in the district court and an appellee and cross-appellant in the court of appeals. Respondent South Florida Water Management District, was a defendant in the district court, and appellant and cross-appellee in the court of appeals. Carol Wehle, its Executive Director, was, in her official capacity, a defendant in the district court, and an appellant in the court of appeals. The United States Sugar Corporation and the United States of America were intervenors in support of defendants in the district court, and appellants in the court of appeals. RULE 29.6 STATEMENT None of petitioners has a parent company, and none has issued stock.

5 111 TABLE OF CONTENTS QUESTION PRESENTED... PARTIES TO THE PROCEEDING... RULE 29.6 STATEMENT... TABLE OF APPENDICES... i ii ii iv TABLE OF AUTHORITIES...v OPINIONS BELOW... 1 JURISDICTION... 1 STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 1 A. The Clean Water Act... 1 B. The Disputed Discharges... 3 C. The Miccosu.kee Case... 4 D. The District Court s Decision... 6 E. EPA s Water Transfers Rule... 8 F. The Court of Appeals Decision REASONS FOR GRANTING THE WRIT I. CERTIORARI IS WARRANTED BECAUSE THE COURT BELOW APPROVED A SWEEPING STATUTORY EXEMPTION THAT IS CONTRARY TO THE ACT AND HAS BEEN REJECTED BY OTHER COURTS OF APPEALS...16 A. The Definition of a "Discharge of a

6 iv Pollutant" Does Not Support the Unitary Waters Theory B. Numerous Provisions of the Act Refute the Unitary Waters Theory The Definition of"pollutant" The Act s Focus on Protecting Specific Water Bodies Express Statutory Objectives and Exemptions...27 II. THIS CASE PRESENTS THE PROPER OCCASION FOR THE COURT TO ADDRESS THE IMPORTANT QUESTION LEFT OPEN IN MICCOSUKEE...29 CONCLUSION TABLE OF APPENDICES APPENDIX A: Court of Appeals Opinion (June 4, 2010)...la APPENDIX B: APPENDIX C: APPENDIX D: APPENDIX E: Final Judgment of the District Court (June 15, 2007)... 39a District Court, Order on Remedies of the District Court (June 15, 2007)... 41a District Court, Findings of Fact and Conclusions of Law (Dec. 11, 2006)...53a Order Denying Rehearing En Banc...203a

7 V APPENDIX F: Relevant Statutes...205a TABLE OF AUTHORITIES Cases: Alaska Ctr. for the Envt. v. Re111); 762 F. Supp (W.D. Wash. 1991)... Arkansas v. Oklahoma, 503 U.S. 91 (1992) Babbitt v. Sweet Home Chap. of Cmtys. for Greater Or., 515 U.S. 687 (1995) Brown v. Gardner, 513 U.S. 115 (1994) CatskaTls Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, (2d Cir. 2001)... passim Catskills Mountains Chapter. of Trout Unh mited, Inc. v. City of New York, 451 F.3d 77 (2d Cir. 2006)... passim Catskills Mountains Chapter of Trout Unlimited, Inc. v. EPA, 630 F. Supp. 2d 295 (S.D.N.Y. 2009) Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984)...passim City of Kansas City v. Dept. of Housing and Urban Dev., 923 F.2d 188 (D.C. Cir. 1991)...18

8 vi Clark v. Martinez, 543 U.S. 371 (2005)... 16,24 Community ~r Creative Non-Violence v. Reid, 490 U.S. 730 (1989) Cuomo v. ClearingHouse, 129 S.Ct (2009)...21 Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.1991) Dept. of Navy v. Egan, 484 U.S. 518 (1988) Dubois v. United States Dept. of Agriculture, 102 F.3d 1273 (1 st Cir. 1996)... passim E.I. Du Pont De Nemours Yr Co. v. Train, 430 U.S. 112 (1977) EPA v. California, 426 U.S. 200 (1976)... 2 MCI Tel. Corp. v. Amer. Tel. & To1., 512 U.S. 218 (1994)...21 Miccosukee Tribe of Indians of Florida v. South Fla. Water Mgt. Dist., 280 F.3d 1364 (1 lth Cir. 2002), affd in part, vacated and remanded, 541 U.S. 95 (2005)...7 Miccosukee Trlbo of Indians of Florida v. South Fla. Wator Mgt. Dist., 559 F.3d 1191 (llth Cir. 2009)...6 Milwaukee v. Illinois, 451 U.S. 304 (1981)... 2

9 vii Morrison v. National Australia Bank, Ltd, 130 S. Ct (2010) National Cable & Telecommunications Ass "n v. Brand X Internet Services, 545 U.S. 967 (2005)...30 National Wildh fe Fed n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982)...20 Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) Nixon v. Missouri Mun. League, 541 U.S. 125 (2004) N. Plains Res. Council v. Fidelity Exploration & Dev., 325 F.3d 1155 (9th Cir. 2003)...10,19 Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9 th Cir. 2008) PUD No. 1 of JelTerson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994)... 2,26 Rapanos v. United States, 547 U.S. 715 (2006)...20,22 Santos v. United States, 128 S. Ct (2008)... 24

10 .oo Vlll S.D. Warren ~o. v. Maine Bd. o Envtl Protection, 547 U.S. 370 (2006)... 2,26 South F]a. Water Mgt. Dist. v. Miccosukee Tribe o Indians o Fla., 541 U.S. 95 (2005)...passim Train v. City o New York, 420 U.S. 35 (1975)... 2 United Say. Assn. of Tex. v. ~ mbers of Inwood Forest Associates, Ltd, 484 U.S. 365 (1988) United States v. C]eve]and Indians Baseba]] Co., 532 U.S. 200 (2001) United States v. Riverside Bayview Homes, Inc., 474 U.S. 212 (1985) West Va. Univ. Heaps., Inc. v. Casey, 499 U.S. 83, 98 (1991) Statutes: Title 28, U.S.C.: 1254(1) (a)(3)... 9

11 Title 33, U.S.C. 33: 1251(a)(1) (a)(2) l(a) (b)(1)(C) (a) (c)(2)... 6, (c)(3) (d)... 6, (d)(4)(B) (a) passim 1342(a)... 17, (/)... 22, (r) (6) (7)... passim 1362(12) (14)... psssim 1365(a)... 1 Re gulations: 33 C.F.R (c) C.F.R (i) C.F.R (g)(4) C.F.R (b)... 25

12 X 40 C.F.R Miscellaneous: EPA Office of General Counsel, In re Riverside Irrigation Dist., 1975 WL (1975)...6,21 EPA, Water Quality Standards Handbook (2d Ed. 1994, rev. 2007) Fla. Admin. Code National Pollutant Discharge Elimination System (NPDES) Water Transfers, Proposed Rule, 71 Fed. Reg (June 7, 2006)...7 National Pollutant Discharge Elimination System (NPDES) Water Transfers, Final Rule, 73 Fed. Reg (June 13, 2008). passlrn S. REP. No (1977)...28 William H. Rodgers, Jr., ENVIRONMENTAL LAW (2d Ed.1994)... 29

13 OPINIONS BELOW The opinion of the court of appeals is published at 570 F.3d 1210 and reproduced in the appendix at 1a- 38a. The court of appeals unpublished order denying rehearing en banc is reproduced at 203a- 204a. The district court s unreported opinion is reproduced at 53a-202a, and its unreported remedial order is reproduced at 41a-51a. JURISDICTION The district court had jurisdiction under 28 U.S.C and 33 U.S.C. 1365(a). The court of appeals had jurisdiction under 28 U.S.C The court of appeals judgment was entered on June 4, The court denied petitions for rehearing en banc on May 7, This Court s jurisdiction is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Clean Water Act (Act or CWA) prohibits "the discharge of any pollutant by any person" except as provided in the Act, 33 U.S.C. 1311(a), and defines "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point source," id. 1362(12)(A). Other pertinent provisions of the Act are set forth in the appendix at 205a-212a. STATEMENT OF THE CASE A. The Clean Water Act. Congress enacted the Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation s waters," 33 U.S.C. 1251(a)(1), the " national goal being to achieve water quality which provides for

14 -2- the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water, " S.D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370, 384 (2006) (quoting 33 U.S.C. 1251(a)(2)). The Act s "comprehensive program for controlling and abating water pollution," Train v. City of New York, 420 U.S. 35, 37 (1975), applicable to all "navigable waters," broadly defined to mean "the waters of the United States, including the territorial seas," 33 U.S.C. 1362(7) - combines a system of permit requirements and technology-based controls for "point sources," with a system of water quality standards for individual water bodies based upon their biological characteristics and designated uses. See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704 (1994). The Act makes unlawful "the discharge of any pollutant by any person," 33 U.S.C. 1311(a), except in compliance with specified provisions of the Act, including Sections 402 and 404. The National Pollutant Discharge Elimination System (NPDES) permit program set forth in Section 402, 33 U.S.C. 1342, is the "primary means" for protecting and improving water quality within the "comprehensive regulatory regime" established by Congress. Arkansas v. Oklahoma, 503 U.S. 91, 99, 101 (1992). NPDES permits, issued by states or EPA, set forth the conditions for the discharge of pollutants consistent with various other applicable provisions of the Act, and must be calibrated to "water quality standards" applicable to the specific water body into which the source discharges. See 33 U.S.C. 1311(b)(1)(C), 1312(a), 1313(a)-(c); Milwaukee v. Illinois, 451 U.S. 304, 318 (1981); EPA v. California, 426 U.S. 200, (1976).

15 -3- B. The Disputed Discharges. Respondent South Florida Water Management District s three large pumping stations - known as S-2, S-3, and S-4 - convey very large volumes of water from canals south of Lake Okeechobee, through large pipes, against gravity and through a dike, into the Lake. See Pet. App. 84a-87a. 1 "The flow rate from just one of the pump stations operating at full capacity" is "comparable to the flow of a medium-sized Florida river." Id. at 86a. The pump stations convey phosphorous and numerous other pollutants - in what the court below called a "loathsome concoction of chemical contaminants,"/d, at 4a - into the Lake, which is a drinking water reservoir and of great importance to South Florida s natural environment. In 2002, petitioners Friends of the Everglades, Fishermen Against Destruction of the Environment, and Florida Wildlife Federation filed suit pursuant to the citizen enforcement provisions of the Act, 33 U.S.C. 1365(a), asserting that the District s release of pollutants without a NPDES permit violated the Act.2 The District defended on the basis, inter alia, that the Act s prohibition should not apply because its pump stations were not themselves the origin of pollutants, but instead merely transferred alreadypolluted water. 1 The "central feature of the Everglades ecosystem," the Lake, 730 square miles in area, "suppl[ies] water to the urban, agricultural and natural systems throughout the southern Florida peninsula." Pet. App. 70a, 72a. 2 The Miccosukee Tribe of Indians of Florida intervened as a plaintiff; the United States Sugar Corporation and the United States intervened as defendants.

16 -4- C. The Miccosukee Case. The district court entered a stay pending this Court s ruling in another enforcement suit under the Act, involving essentially the same parties and another South Florida pumping station known as "S-9," in which the Eleventh Circuit had ruled that the District was obligated to obtain a NPDES permit for the discharges. 280 F.3d 1364 (2002). In the S-9 case, this Court unanimously rejected the District s argument that its pumping stations are not "point sources" because the stations do not generate pollutants, which the District "appear[ed] to have abandoned. * * * in its reply brief." South Fla. Water Mgt. Dist. v. Miccosukee Tribe of Indians of Florida, 541 U.S. 95, 105 (2005) (Miccosukee). The Court explained that the Act s definition of point source as a "discernible, confined, and discrete conveyance," 33 U.S.C. 1362(14), "makes plain that a point source need not be the original source of a pollutant." 541 U.S. at 105. Although it upheld the Eleventh Circuit s resolution of "the precise question" on which review had been granted, the Miccosukee Court vacated and remanded for further proceedings because the court below had granted summary judgment despite a genuine factual dispute on a material issue: the District s argument that the waters upstream and downstream of the pumping station were "not distinct water bodies at all," but instead two "hydrologically indistinguishable parts of a single water body," meaning that no "addition" was occurring within the statutory definition of "discharge of a pollutant." 541 U.S. at Noting the parties agreement that if the waters on either side of the District s pump station "are simply two parts of the same water body," no NPDES

17 -5- permit would be required, id. at 109, the Court borrowed a metaphor from the Second Circuit: "If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not added soup or anything else to the pot." Id. at 110 (quoting Catskills Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 492 (2d Cir. 2001) (Catskills/)). The Miccosukee Court also noted, but declined to conclusively resolve, a broader argument advanced by the United States as amicus curiae, namely that "all the water bodies that fall within the Act s definition of navigable waters" should be "viewed unitarily for purposes of NPDES permitting requirements." 541 U.S. at If the statute were read that way, the Court noted, no permit would be required when water from one navigable water body is "discharged, unaltered, into another navigable water body," even if the two bodies are "distinct" in every "meaningful" way, and "even if one water body were polluted and the other pristine, and the two would not otherwise mix." Id. at 106 (citing Catskills I, 273 F.3d at 492, and Dubois v. United States Dept. of Agriculture, 102 F.3d 1273 (1 st Cir. 1996)). 3 Although leaving the argument open on remand, the Court paused to note "several NPDES provisions 3 The Eleventh Circuit had concluded that "in determining whether pollutants are added to navigable waters for purposes of the [NPDES requirement], the receiving body of water is the relevant body of navigable water," and that S-9 had "added" pollutants because it put pollutants in the receiving water body that would not otherwise have ended up there. 280 F.3d at

18 -6- that might be read to suggest a view contrary to the unitary waters approach," 541 U.S. at 107 (citing, inter alia, 33 U.S.C. 1313(c)(2), 1313(d)); found no support for the Government s claim that the "unitary waters" approach reflected a "longstanding EPA view," id. (citing In re Riverside Irrigation Dist., 1975 WL (EPA Office of General Counsel); noted that certain EPA regulations seemed to conflict with the "unitary waters" concept, id. at (citing 40 C.F.R (g)(4)); and questioned assertions that there would be dire consequences for state water management, id. at 108. On remand, the Miccosukee case was stayed by the district court pending the current respondents appeal (in the instant case) of the district court s ruling in favor of the petitioners and the Miccosukee Tribe. See 559 F.3d 1191, (llth Cir. 2009) (declining to overturn the stay, noting that the "unitary waters theory" was "the central argument" of the District). Therefore, the instant case - involving essentially the same parties, although different pumping stations and water bodies - became the proceeding in which the lower courts addressed the "unitary waters" theory. D. The District Court s Decision. After Miccosukee was decided, the district court lifted the stay in this case and conducted a more than twomonth bench trial, ultimately determining that operation of the S-2, S-3, and S-4 pump stations without a NPDES permit violated the Act. Addressing the question highlighted by this Court in Miccosukee, the court found that the canals from which the District s pumps draw water are "meaningfully distinct" from the Lake into which they discharge. On the latter point, the court noted that the water in the canals is chemically and

19 -7- biologically different from that in the Lake; that pumping of contaminated drainage canal water harms the Lake; that the waters are "classified differently under the CWA (the Lake is a Class I water body and the canals are Class III water bodies)"; and that "the waters that are backpumped into the Lake would not otherwise reach the Lake (in any significant amount, much less in the same quantities) but for the backpumping activities." Pet. App. 174a. The court then turned to the District s argument, echoing the government s "unitary waters" submission in Miccosukee (and thereafter embraced in an EPA regulatory proposal to exempt "water transfers" from NPDES permitting, 71 Fed. Reg (June 7, 2006)) that no permit was required because the canals from which the pumping stations draw are themselves "navigable waters" under the Act. The district court found it "evident" that "addition * * * to the waters of the United States contemplates an addition from anywhere outside of the receiving water, including from another body of water," Pet. App. 159a (citing Miccosukee, 280 F.3d at 1368, and Catskills Mountains Ch. of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77, 84 (2d Cir. 2006) (Catskills I/)); and rejected EPA s contrary interpretation in its proposed rule, declaring that because congressional intent was "unambiguous" on the point, "no agency interpretation" could alter that intent. Pet. App. 170a. After taking further briefing on remedies, the district court entered an injunction requiring the District to apply for a NPDES permit, relying largely on unchallenged evidence that the unpermitted pumping "created a significant risk of triggering a toxic algal bloom that could cause serious injury to

20 -8- humans and death to wildlife"; that backpumping creates "toxic disinfection byproducts that can sicken humans," and "causes irreparable ecological harm to Lake Okeechobee." Pet. App. 45a-46a. E. EPA s Water Transfers Rule. After briefing in respondents Eleventh Circuit appeal was complete, EPA issued a regulation in essentially the form proposed two years earlier, exempting "water transfers" from the NPDES permitting requirement. 73 Fed. Reg (June 13, 2008). In the preamble, EPA explained that "the United States has taken the position that the Clean Water Act generally does not subject water transfers to the NPDES program," and quoted from the United States Eleventh Circuit brief in this case: When the statutory definition of "navigable waters" ~/.e., "the waters of the United States," 33 U.S.C. 1362(7)--is inserted in place of "navigable waters," 33 U.S.C. 1362(12) provides that NPDES applies only to the "addition of any pollutant to the waters of the United States." Given the broad definition of "pollutant," transferred (and receiving) water will always contain intrinsic pollutants, but the pollutants in transferred water are already in "the waters of the United States" before, during, and after the water transfer. Thus, there is no "addition"; nothing is being added "to" "the waters of the United States" by virtue of the water transfer, because the pollutant at issue is already part of "the waters of the United States" to begin with. 73 Fed. Reg. at (quoting brief). EPA expressed its own view that "taken as a whole, the statutory language and structure of the Clean Water Act indicate that Congress generally did not intend

21 -9- to subject water [transfers] to the NPDES program," and that "such transfers between navigable waters do not constitute an addition to navigable waters to be regulated under the NPDES program." Id. Recognizing that some courts of appeals had held that NPDES permits were required for "movement of pollutants between distinct waterbodies," EPA stated that those courts had not ~view[ed] the statutory interpretation [question] through the lens of Chevron deference." 73 Fed. Reg. at n.4, EPA explained that that a ~holistic approach to the text of the CWA was needed" because of ~the balance Congress created between federal and State oversight of activities affecting the nation s waters," Id. at (citing CWA Sections 101(g), 102(h), 304(f) and 510(2)), and that %rater transfers are unlike the types of discharges that were the primary focus of Congressional attention." Id. at EPA s resulting regulation creates a new NPDES "exclusion" for "water transfers," defined as "any activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use," but not including "pollutants introduced by the water transfer activity itself to the water being transferred." 40 C.F.R (i). 4 4 Petitioners and other parties filed petitions for review challenging the regulation. Due to uncertainty concerning the proper forum for reviewing this regulation, actions were also filed in federal district courts in Florida and New York. Pursuant to 28 U.S.C. 2112(a)(3), the Judicial Panel on Multidistrict Litigation ordered that the petitions, which had been filed in three the First, Second and Eleventh Circuits, be litigated in the Eleventh Circuit, where the petitions were consolidated under

22 F. The Court of Appeals Decision. The Eleventh Circuit reversed and held that, in light of EPA s rule, the District s pumping stations were not subject to the NPDES permit requirement. The court noted that it was "undisputed" that water pumped from the three pumping stations contained "pollutants"; that both the canals and the Lake were "navigable waters"; and that the three pump stations are "point sources." Pet. App. 10a. Instead, and noting that respondents had not even challenged the district court s finding that the drainage canals and Lake Okeechobee were "meaningfully distinct" waters, id. at 10a-lla & n.4, the court turned to whether the District could nonetheless escape a NPDES obligation by reference to the "unitary waters" theory, i.e., that conveying pollutants from one distinct navigable water body to another is not an "addition... to navigable waters." The panel noted that "It]he unitary waters theory has a low batting average," and, "[i]n fact, it has struck out in every court of appeals where it has come up to the plate." Pet. App. 12a (citing Catskills I, 273 F.3d at 491; Catskills II, 451 F.3d at 83; Dague v. City of Burlington, 935 F.2d 1343, (2d Cir.1991); Dubois, 102 F.3d at 1296; and N. Plains Res. Council v. Fidelity Exploration Friends of the Everglades v. EPA, No C (11 th Cir.), and stayed pending the decision in this appeal. (The district court lawsuits have also been stayed, see Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. EPA, 630 F. Supp. 2d 295 (S.D.N.Y. 2009)). On September 10, 2008, the court of appeals denied a motion by the United States, which was opposed by all other parties, to stay this appeal and consider it together with the petitions for review of the Water Transfer Rule.

23 - 11- and Dev., 325 F.3d 1155, 1163 (9th Cir. 2003)) - and noted that ~[e]ven the Supreme Court has called a strike or two on the theory, stating in Miccosukee that several NPDES provisions might be read to suggest a view contrary to the unitary waters approach." Pet. App. 13a (quoting 541 U.S. at 107). "In sum," the court of appeals stated, ~all of the existing precedent" was ~against the unitary waters theory," and for the view ~that the transfer of pollutants from one meaningfully distinct navigable body of water to another is an addition... to navigable waters for Clean Water Act permitting purposes." Pet. App. 14a-15a. The court turned to whether EPA s new regulation was entitled to deference under Chevron USA, Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984), a question turning on ~hether addition... to navigable waters - meaning addition to the waters of the United States - refers to waters in the individual sense or as one unitary whole." Pet. App. 26a. The court of appeals considered the "common meaning of the term waters" to be unhelpful, because ~[i]n ordinary usage waters can collectively refer to several different bodies of water such as the waters of the Gulf coast, or can refer to any one body of water such as "the waters of Mobile Bay. " Pet. App. 26a-27a. More decisive, in the court s view, was the "conspicuous absence of any before navigable waters in 1362(12)," which "supports the unitary waters theory because it implies that Congress was not talking about any navigable water, but about all navigable waters as a whole." Id. at 28a. Petitioners view of the statute, the court reasoned (id.), effectively asks us to add a fourth "any" to the statute so that it would read: "Any addition of

24 any pollutant to any navigable waters from any point source." The court stated that ~if the meaning of language is plain, no alteration should be necessary to clarify it," and that ~[t]he addition or subtraction of words indicates that the unaltered language is not plain." Pet. App. 28a. Observing that the Act sometimes says "any navigable waters," while elsewhere using "the unmodified navigable waters to mean the same thing," the court concluded that the text was not "clear" in favor of the ~unitary" reading, either. Id. at 30a. The panel acknowledged that accepting the respondents interpretation would have a tendency to undermine the Act s provisions targeting water quality in particular water bodies, and could lead to "results even more absurd than pumping dirty canal water into a reservoir of drinking water": If an "addition... to navigable waters" occurs only at a pollutant s first entry into navigable waters, and not when it is transferred to a different water body, then the NPDES program-the centerpiece of the Clean Water Act-would require no permit to pump the most loathsome navigable water in the country into the most pristine one. Pet. App. 33a. The court declared that such a prospect was "frightening enough that we might agree with the Friends of the Everglades that the unitary waters theory does not comport with the broad, general goals of the Clean Water Act," but explained that its obligation was to "interpret and apply statutes, not congressional purposes." Id. (citations and internal quotation marks omitted).

25 The court stated that "there are other provisions of the Clean Water Act that do not comport with its broad purpose of restoring and maintaining the chemical, physical and biological integrity of the Nation s waters," explaining that while non-point source pollution is a "serious water quality problem, * * * the NPDES program does not even address it," and that "Congress even created a special exception to the definition of point source to exclude agricultural storm water discharges and return flows from irrigation, despite their known, substantially harmful impact on water quality." Pet. App. 34a (citing 33 U.S.C. 1362(14)). "The point is," the court explained, "that it may seem inconsistent with the lofty goals of the Clean Water Act to leave out of the permitting process the transfer of pollutants from one navigable body of water to another, but it is no more so than to leave out all non-point sources, allowing agricultural run-off to create a huge dead zone in the Gulf of Mexico." Id. at 35. "Having concluded that the statutory language is ambiguous," the Court concluded that "EPA s regulation, which accepts the unitary waters theory," was permissible, because EPA s construction was "one of the two readings" that the court had "found * * * reasonable." App. 36a. The court concluded with a hypothetical designed to help analyze the question of the consistency of the unitary waters theory with the Act in an "abstract" manner and free of "contentious policy interests": Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting "any addition of any marbles to buckets by any person." A person comes along, picks up two marbles from the first bucket, and

26 - 14- drops them into the second bucket. Has the marble-mover "add[ed] any marbles to buckets"? * * * Whatever position we might take if we had to pick one side or the other we cannot say that either side is unreasonable. Pet. App. 37a. "Like the marbles rule," the court concluded, the section 1362(12) definition was "ambiguous," and EPA s regulation was "a reasonable, and therefore permissible, construction of the language." Id. REASONS FOR GRANTING THE WRIT This case squarely presents an issue of great national importance concerning the scope of the Clean Water Act s pivotal permitting program. The decision below upheld an interpretation of the Act this Court, in Miccosukee, treated with pronounced skepticism, and that has been rejected by "all of the existing precedent," Pet. App. 14a. The decision urgently warrants this Court s review. The court of appeals disregarded (and denigrated as ethereal and unenforceable statutory "purposes") the very materials - text, structure, and express legislative objectives - necessary for a court to carry out its tasks of determining whether a statute is ambiguous and whether any ambiguity has been reasonably resolved by the agency. The court fundamentally misunderstood core provisions of the Act, turning statutory language designed to ensure that the waters affected by a discharge are subject to federal jurisdiction into grounds for a major new exception to the Act s comprehensive point source discharge program. The "unitary waters" construction the court approved is irreconcilable - even obviously so - with the Act s

27 - 15- plain language, including its express ban on discharges of a "pollutant" ("dredged spoil," 33 U.S.C. 1362(6)) that inherently comes from navigable waters, and its elaborate provisions for protecting individual water bodies. The consequences of the decision are farreaching. This case (like Miccosukee) illustrates the importance of the permit coverage issue for one of the United States most important and imperiled natural resources; as the district court found, discharges like those at issue here have been significant contributors to chronic environmental problems in a Lake that is an important drinking water reservoir. All courts to have considered the unitary waters theory have remarked upon its jarring implications for administration of the Act; as the Eleventh Circuit here acknowledged, the theory has the "absurd" consequence of "requir[ing] no permit to pump the most loathsome navigable water in the country into the most pristine one." Pet. App. 33a. The NPDES permitting scheme is a critical part of the Act and the newly minted exemption approved here would substantially restrict its scope. This case, moreover, is the appropriate vehicle to address the issue: Whereas in Miccosukee the "unitary waters" argument was belatedly raised (and only by an amicus), and there were unresolved factual issues, here the issue was exhaustively treated in the lower courts, and the district court entered exhaustive factual f mdings after a trial.

28 - 16- I. CERTIORARI IS WARRANTED BECAUSE THE COURT BELOW APPROVED A SWEEPING STATUTORY EXEMPTION THAT IS CONTRARY TO THE ACT AND HAS BEEN REJECTED BY OTHER COURTS OF APPEALS Chevron does not immunize agency interpretations that are inconsistent with the relevant statute, 467 U.S. at & n.9, and a court "need accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ. " Morrison v. National Australia Bank, Ltd, 130 S. Ct. 2869, 2887 (2010) (citation omitted). See also Clark v. Martinez, 543 U.S. 371, 402 (2005) (Thomas, J., dissenting). Here, the construction approved by the Eleventh Circuit badly fails that test. Seizing on the semantic possibilities of a few words (together with an ostensibly "missing" word), the court found itself duty-bound to uphold an interpretation of the Act that is inconsistent with prominent features of the CWA. But ambiguity is "a creature not of definitional possibilities but of statutory context." Brown v. Gardner, 513 U.S. 115, 118 (1994). The court of appeals error is exemplified in its closing marbles-and-buckets analogy, which "abstract[s]" away (Pet. App. 37a) all the relevant statutory context and recasts the case as an examination of the semantic possibilities presented by an isolated bit of text of an imaginary statute whose content and purposes are unknown. The hypothetical fails: The real statutory definition here does not exist in isolation, but as part of a complex regulatory statute the provisions of which rule out this interpretation, including (as the Miccosukee

29 Court suggested) the entire Water Quality Standards regime, which establishes standards tailored to individual water bodies and predicates permit conditions on the specific characteristics of the receiving water bodies, and the express inclusion of "dredged spoil" (a pollutant that inherently comes from navigable waters) as a "pollutant" governed by the same statutory "discharge" definition that governs here. Infra, pp To make the Eleventh Circuit s marbles-andbuckets hypothetical minimally apt, the hypothetical would need to posit specific "marble concentration standards" for individual buckets, see 33 U.S.C. 1313, 1314(a) (water quality standards and criteria); to require that marbles placed in buckets be consistent with those standards, see id. 1312, 1342(a), and to define "marbles" to include "marblesextracted-from-buckets," ido 1362(14) ("dredged spoil"). The "unitary waters" construction is simply not consonant with the provisions of the nonhypothetical Clean Water Act. A. The Act s Definition of a "Discharge of a Pollutant" Does Not Support the Unitary Waters Theory It is undisputed that the District s pumping stations are "point sources," that the chemical contaminants in the water pumped into Lake Okeechobee are "pollutants," and that the Lake is "navigable." Pet. App. 10a. And as the district court found, and respondents did not seriously dispute, the canals from which the water is pumped are "meaningfully distinct" from the Lake. Id. at 10alla & n.4, 174a. The court of appeals held, however, a permit was not required because EPA could permissibly read "navigable waters" in 33 U.S.C.

30 (12) to refer collectively to all CWA jurisdictional waters in the Nation, so that a point source that conveys pollutants from one particular body to another is not "adding" pollutants to "navigable waters," considered unitarily. The court found the CWA ambiguous, and hence grist for deference, almost exclusively because of the absence of the word "any" before the phrase "navigable waters" in the definition of"discharge of a pollutant" in section 1362(12). See Pet. App. 28a- 30a. Given the presence of"any" before three other nouns in the definition ("addition," "pollutant," and "point source"), the Court concluded, the statute could be read to support a reference, not to individual water bodies, but to "navigable waters as a collective whole." Id. at 29a. The "absent-any" argument is not persuasive on its own terms. 5 To be sure, the bare phrase 5 While the "absent-any" argument was a staple of the United States briefing below, e.g., U.S. Br. as Appellant 25-26; see also Miccosukee, 541 U.S. at 96 (citing it as the textual "focus" of unitary-waters argument urged by United States); EPA s rulemaking preamble and the proposed rule before it, 71 Fed. Reg , do not rely upon, or even mention, the argument. The court of appeals, that is, predicated its approval of the agency s construction almost entirely on a statutory argument not made by the agency itself. See Chevron, 467 U.S. at 844 (calling for deference to "a reasonable interpretation made by the administrator of [the] agency") (emphasis added); see also, e.g., City of Kansas City v. Dept. of Housing and Urban Dev., 923 F.2d 188, 192 (D.C. Cir. 1991) (under Chevron, "the object of our deference is the result of agency decisionmaking, and not some post hoc rationale developed as part of a litigation strategy").

31 "navigable waters" can be considered "singular" or "collective," Pet. App. 29a; see also 1 U.S.C. 1 (Dictionary Act provision that all singular terms presumptively import the plural, and vice versa), and "any" (and its absence) can mean "different things depending upon the setting," Nixon v. Missouri Mun. League, 541 U.S. 125, 132 (2004). (As the decision itself recognizes, Pet. App. 30a, the Act repeatedly uses and omits the term "any" as a modifier to "navigable waters" without holding to a consistent pattern regarding whether individual, or plural, bodies of water are referenced). But while "waters" can certainly refer either to a water body or to a collection of water bodies, the meaning of the reference in the case of the section 1362(12) definition "is clarified by the remainder of the statutory scheme" because "only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. " United States v. Cleveland Indians Baseball Co., 532 U.S. 200, (2001) (quoting United Say. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988)). Section 1362(12) s text itself undermines the "unitary waters" theory: The definition speaks of pollutants going "from" a point source and "to" navigable waters. This directional language demonstrates that (as several courts of appeals have concluded, e.g, Northern Plains Resource Council, 325 F.3d at 1162), what matters under the Act is the "navigability" vel non of the receiving water - the water that is located on the "outflow" side of the point source. This conclusion is consistent with the well understood purpose of the reference to "navigable waters" in the definition: to require that the

32 receiving water body be one that is subject to federal regulatory jurisdiction under the Act (and the Interstate Commerce Clause). "Navigable waters," of course, is a jurisdictional term of art with deep historical roots, that, throughout the statute, serves to identify those water bodies that are properly subject to federal regulation. See Rapanos v. United States, 547 U.S. 715, 734 (2006) (plurality opinion) ("On the traditional understanding, navigable waters included only discrete bodies of water"); United States v. Riverside Bayview Homes, Inc., 474 U.S. 212, 131 (1985) (determining adjacent wetlands to be sufficiently close to "rivers, streams, and other hydrographic features" to be classifiable as "navigable waters"). The Act requires that the waters into which a point source discharges be "navigable" (that is, that they be "waters of the United States") in order to ensure that the various obligations the statute imposes fall within Congress s authority under the Commerce Clause. See id. at 133. Nothing in the statute turns on the status of waters in which pollutants are suspended before they enter the point source. Indeed, it is irrelevant whether the pollutant entering the point source comes from a navigable water, a nonnavigable water, or enters the point source in an entirely dry state.6 6 The term "addition" requires a baseline against which any new ("additional") pollutants are identified; as this Court explained in Miccosukee, following the Second Circuit in Catskill I, there is no "addition" if the point source merely returns water to the same water body. 541 U.S. at 110; see also S.D. Warren, 547 U.S. at ; cf. National Wildlife Fed n v. Gorsuch, 693 F.2d 156, 175 (D.C. Cir. 1982). But, as the Miccosukee Court

33 -21 - To assert, as did the portion of the United States brief quoted by the EPA preamble, see 73 Fed Reg. at 33701, that the definition of "navigable waters" as "waters of the United States" operates to exempt from regulation activities that are obviously subject to federal jurisdiction, is to assign a surprising role to a statutory definition that was intended to expand regulatory jurisdiction, Riverside Bayview Homes, 474 U.S. at Such a peculiar reliance on the recognized, the unitary waters theory s claim is far more ambitious, i.e., that discharging pollutants from an entirely different water body (perhaps from another drainage basin, or from the "territorial seas," 33 U.S.C. 1362(7), into a freshwater stream) is categorically not an "addition" simply because the source waters meet the standard for CWA jurisdiction. The term "addition" is not so elastic as to exclude, say, the piping of oil-laden salt water into a pure freshwater stream. See Cuomo v. Clearing House, 129 S Ct. 2710, 2715 (2009) ("the presence of some uncertainty does not expand Chevron deference to cover virtually any interpretation"); MCI Tel. Corp. v. Amer. Tel. & Tel., 512 U.S. 218, 229 (1994) (no deference to interpretation that "goes beyond the meaning that the statute can bear"). EPA did not even have the colorable textual warrant of the court of appeals "absent any, " relying instead upon transparently inadequate "holistic" spinning of provisions on water management and federalism - arguments pointedly not relied upon by the court below, and rejected in Catskill I, 273 F.3d at 494, and H, 451 F.3d at See also Miccosukee, 541 U.S. at EPA made this point decades ago in rejecting pleas for an exemption for irrigation return flows that had raised a unitary waters argument. In re Riverside Irrigation Dist., 1975 WL at *4 ("the broad definition of navigable

34 jurisdictional concepts to narrow the Act s application as to activities clearly within EPA s regulatory jurisdiction would be particularly unlikely given that the Act contains straightforward and express exemptions for various activities, e.g., 33 U.S.C. 1342(/), (r). The "unitary waters" theory is bizarre for another reason: The Clean Water Act is not concerned with maintaining some aggregate, national quantum of pollutants in all "waters of the United States." See Rapanos, 547 U.S. at 732 (plurality opinion) ( The use of the definite article ( the ) and the plural number (%vaters ) shows plainly that 1362(7) does not refer to water in general."); see also 33 U.S.C. 1362(6) (definition of "pollutant" includes "heat"). While such an aggregated national limit may make sense for certain forms of air pollution, the Clean Water Act is intensely concerned with protecting local water quality, local biota, and local uses. See Rapanos, 547 U.S. at 769 (Kennedy, J., concurring in judgment) (Act is concerned "with downstream water quality"). The unitary waters theory is fundamentally at odds with the statute. B. Numerous Provisions of the Act Refute the Unitary Waters Theory 1. The Definition of"pollutant" In Miccosukee, this Court observed that the statutory definition of "point source," 33 U.S.C. 1362(14) - with its references to "pipes," "ditches," "tunnels," and "conduits," made it "plain" that "a point source need not be an original source of the pollutant." 541 U.S. at 105. waters serves to expand the application of the Act and the permit program, not narrow it").

35 Here, the Act s express definitions make plain that the alternative argument for permit avoidance proffered here is at least as "untenable," id., as the District s principal argument in Miccosukee. The very first item listed in the statutory "pollutant" definition is "dredged spoil," 33 U.S.C. 1362(6). Dredged spoil inherently comes from navigable water bodies. See 40 C.F.R (defining dredged material as "material that is excavated or dredged from the waters of the United States") (emphasis added); accord 33 C.F.R (c); see also 73 Fed. Reg. at (EPA s observation that dredged spoil ~by its very nature comes from a waterbody ) (citations omitted). The Act s "pollutant" definition shows that Congress rejected the "unitary waters" theory (or rather Congress made choices inconsistent with the theory, which was not devised until thirty years after the Act became law). The ~discharge" of dredged fill requires a permit by virtue of 33 U.S.C. 1311(a), the broad prohibition against unpermitted discharges, and is governed by the same "discharge of a pollutant" definition in section 1362(12). If these provisions are construed to mean that the transfer of pollutants from one navigable water to another is not a "discharge of a pollutant," the result would be to render nugatory the express definition of "dredged fill" as a pollutant, and to render the entire Section 404 program, 33 U.S.C. 1344, irrelevant. In the preamble to its Water Transfers Rule, EPA stated that Rule "will not have an effect on the 404 program" because "Congress explicitly forbade discharges of dredged material" without a permit. Id. at But that is exactly the point: The Act s express inclusion of a pollutant that inherently comes from navigable waters shows that an

36 interpretation of section 1362(12) that excludes pollutants from navigable waters is incompatible with the statute. The prohibition on the "discharge of a pollutant," 33 U.S.C. 1311(a), and the section 1362(12) definition of that phrase govern both discharges of dredged material (subject to Section 404) and discharges of other pollutants (subject to Section 402). EPA cannot, therefore, ignore the statute s inclusion of "dredged fill." This Court has "never" approved ~giving the same [statutory] word, in the same statutory provision, different meanings in different factual contexts." Santos v. United States, 128 S. Ct. 2020, 2030(2008) (plurality opinion). See Clark, 543 U.S. at 386 (rejecting "the dangerous principle that judges can give the same statutory text different meanings in different cases"); id. at 382 (such an approach would "render every statute a chameleon"). 2. The Act s Focus on Protecting Specific Water Bodies. The "unitary waters" concept is irreconcilable with the numerous prominent provisions of the Act that focus on protecting the quality of individual bodies of water, and that predicate the stringency of permit requirements on the characteristics of the particular receiving waters in question. Indeed, in Miccosukee, this Court cited the Act s "individualized ambient water quality standards" as among the provisions "suggest[ing] a view contrary to the unitary waters approach." 541 U.S. at 107 (citing 33 U.S.C. 1313(c)(2)(A)). See also id. 1313(d) (requiring states to establish a "priority ranking" of waters for which effluent standards are "not stringent enough to implement any water quality standard applicable to such waters"). Water quality standards are developed by the states (or EPA, 33 U.S.C. 1313(c)(3)), and must,

37 among other things, protect designated uses of each water body and set forth water quality criteria for each water body. Id. 1313(c)(2). See also EPA, Water Quality Standards Handbook: Second Edition, Ch. 2 (1994, rev. 2007). States establish a hierarchy of classifications of water bodies, corresponding to different categories of uses and different ecological characteristics of various waters, s Water quality criteria are "expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use." 40 C.F.R (b). See Handbook, Ch. 3. As this Court noted in Miccosukee, the water quality standards of the receiving water ~directly affect local NPDES permits; if standard permit conditions fail to achieve the water quality goals for a given water body, the state must determine the total pollutant load that the water body can sustain and then allocate that load among permit holders who discharge to the water body." 541 U.S. at 107 (citing 33 U.S.C. 1313(d)). See also 33 U.S.C. 1311(b)(1)(C), 1313(d); 40 C.F.R (f). See also PUD No. 1,511 U.S. at 713. For each discharge of a pollutant, NPDES permits must include provisions to ensure compliance with the receiving water s water quality standards. 33 U.S.C. 1311(b)(1)(C), 1342(a)(1-2). The Act also contains an "antidegradation" provision designed to preserve 8 For example, Florida has five classifications, ranging from potable water supplies to agricultural and industrial uses. See, e.g., Fla. Admin. Code